Bush campaign lawyers file a motion to force the inclusion of hundreds of overseas ballots, mostly from soldiers serving at overseas duty stations, that lacked the proper postmark or signatures (see November 15-17, 2000). On November 24, Florida Republicans from the state legislature will join the Bush effort. [US News and World Report, 12/13/2000] Three days later, they will drop the suit (see 7:00 p.m. November 25, 2000).

Gore campaign lawyers ask the US Supreme Court to deny a Bush campaign request to not count manually-recounted presidential ballots, calling the request a “bald attempt to federalize a state court dispute.” The next day, the Court will agree to hear the Bush petition (see November 22-24, 2000). [US News and World Report, 12/13/2000]

Richard Cohen. [Source: Washington Post]Washington Post columnist Richard Cohen, a self-described moderate liberal, says that although he voted for Vice President Al Gore (D-TN) in the presidential elections, he believes that for the good of the country, Gore should stop pushing for recounts in Florida and concede the election to George W. Bush (R-TX). “I now think that under current circumstances he would not be the right man for the presidency,” he writes. “If I could, I would withdraw my vote.” Cohen says his considered opinion is based in part on the recent mob riot in Miami, where Bush campaign operatives orchestrated a violent confrontation that forced Miami-Dade County election officials to prematurely shut down their attempts to recount that county’s votes (see 9:00 a.m. and after, November 22, 2000). Cohen writes that in light of the Florida circumstances: “Given the present bitterness, given the angry irresponsible charges being hurled by both camps, the nation will be in dire need of a conciliator, a likable guy who will make things better and not worse. That man is not Al Gore. That man is George W. Bush.” Cohen says that he believes Bush’s claims to be “a uniter, not a divider,” citing as proof Bush’s popularity among Republican governors, “each of whom probably thought the next president should be none other than himself.” Bush also has a reputation for affability from his days in private enterprise, Cohen writes: “I talked with one of them once, a Democrat who disagreed with Bush on many issues. Yet he, too, praised Bush’s leadership abilities, his talent for bringing order out of chaos and for reaching some sort of consensus. That man’s testimony impressed me. His disagreements with Bush were real, his admiration for him profound.” Gore is not a uniter, Cohen asserts. “His own party is sore at him for taking the one-two punch of peace and prosperity and running a race that is still not concluded. His performance was as erratic as his uniform-of-the-day: earth tones on Tuesday, business suit on Wednesday. The country sensed that either he did not know himself, or what he did know the country would not like.” Cohen calls Gore “stiff, robotic,” and appearing “insincere even when he is not… unable to mask his ambition.” Unlike Bush, he does not give the impression of being someone’s “good buddy.” Bush will rally the nation behind him, Cohen opines, where Gore is likely to further divide it. Besides, Cohen writes, having a Republican in the White House may work to “restrain… GOP Dobermans like Reps. Tom DeLay (R-TX) and J.C. Watts Jr. (R-OK),” who presumably would behave in an uncontrollable manner if a Republican is not in the White House to keep them in line. While Bush and Gore have profoundly different approaches to governance, Cohen says, “what matters at the moment is the moment itself—a mere tick of the historic clock that could, if things continue, just stop it dead where it is. History does not guarantee that things will be as they have been. The first and most daunting task of the next president is not a tax bill or a Social Security plan but—as it was when Jerry Ford succeeded Richard Nixon—the healing of the country. I voted for Gore because he was the better man for the job. I can’t help thinking that he no longer is.” [Washington Post, 11/24/2000] The liberal news Web site Consortium News writes that Cohen’s column is “[t]ypical of th[e] Democratic desire to submit to angry Republicans.… Cohen reached his conclusion although Gore has been the one to temper his rhetoric while Bush and the Republicans have escalated their public denunciations of Gore and the Florida Supreme Court.” [Consortium News, 11/24/2000]

Bush supporters display ‘Sore Loserman’ signs. [Source: CNN / Infoimagination (.org)]The Bush campaign works with Florida Republicans to orchestrate the so-called “Sore Loserman” campaign, playing off the names of the two Democratic presidential ticket members, Al Gore (D-TN) and Joe Lieberman (D-CT), to bring pressure for the Democrats to concede the presidency to George W. Bush. Throughout the day, Republican activists protest and wave “Sore Loserman” signs outside the canvassing board offices in the Florida counties that are still recounting votes. One Gore ally is physically threatened by protesters outside the Broward County courthouse and requires bodyguards to exit the courthouse unscathed. Democrats charge that the protesters are trying to disrupt the recount effort (see 9:00 a.m. and after, November 22, 2000) and send a letter to the US Justice Department asking for an immediate investigation. [US News and World Report, 12/13/2000] A few days later, Steven Meyer, a Democratic election observer in Palm Beach County, writes that both Republicans and Democrats are busing in protesters, but Republicans are paying protesters to participate. “I doubt that the people on the Democratic side are getting paid because we don’t have the cash,” he notes. Democrats who “infiltrate” the Republican protests will report being offered pay and expense money to keep coming back. He also writes: “Now, it’s reported that many of these protesters are the same people whom Cuban groups paid to stand outside of Elian Gonzalez’s home in Little Havana. It’s a regular cottage industry—have sign and clever slogan, will travel.” [American Prospect, 12/14/2000] Gonzalez is a young Cuban-American boy who became a cause celebre for some conservatives who accused the Clinton administration of enabling his Cuban father to “kidnap” him and return with him to Cuba after his mother died. [New York Times, 1/14/2000]

Throughout the day, pro-Bush supporters demonstrate outside Blair House, the vice-presidential residence in Washington where Democratic presidential candidate Al Gore and his family are residing. Gore tries to break the impression of being besieged by making a public “run” for ice cream. [US News and World Report, 12/13/2000] Gore’s daughter Kristin later tells a reporter that their home was “under siege” by protesters during this time period. She will say that many screamed, “Get out of Cheney’s house!” referring to George W. Bush’s running mate Dick Cheney. [New York Times, 6/24/2007]

The Bush presidential campaign drops a lawsuit intended to force Florida counties to reconsider overseas military election ballots that were rejected for technical reasons (see 11:30 a.m. November 22, 2000). Instead, the campaign files a suit to re-evaluate the four Florida counties that are still counting ballots. [US News and World Report, 12/13/2000; Leip, 2008] It is possible that the Bush campaign chooses to drop the suit to avoid accusations of hypocrisy similar to those it, and its supporters, have been leveling against the Gore campaign. [Authentic History, 7/31/2011]

Broward County finishes its manual recount of its presidential votes. Democratic candidate Al Gore gains 567 votes, slicing Republican George W. Bush’s lead to 465 (see November 18, 2000) if the recounted votes are to actually be counted. A Broward County elections official, Judge Robert Lee, says that he is “confident, confident that there were many more votes that should have been counted,” presumably referring to other Florida counties. He cites as one example a ballot where the voter had written, “I’m voting for George Bush.” Lee says, “We were able to count it, where a computer couldn’t.” [US News and World Report, 12/13/2000; Tapper, 3/2001; Leip, 2008]

The ballot recounting in Palm Beach County is halted for an hour as Republican lawyers disrupt the proceedings, disputing the order in which precincts are being evaluated. Democrats object to the Republican position, and tempers fray. The counting resumes at 5:00 a.m. [US News and World Report, 12/13/2000] The delay will contribute to Palm Beach County being unable to complete the recount by the end of the day, as mandated by the Florida Supreme Court (see 2:45 p.m. November 26, 2000). Democratic election observer Steven Meyer writes of his observations of numerous and varied Republican “stalling tactics” since recounts began almost two weeks ago (see 8:20 a.m. November 14, 2000), including the selection of thousands of clearly indicated Gore ballots as “questionable.” Meyer writes: “Unfortunately, these stalling tactics were widespread. Because the Republican observers had caused the Board to review so many frivolous challenges, it probably added a full day’s work for the Canvassing Board, and now we were in real danger of missing the 5:00 p.m. deadline for certifying the recount totals to the secretary of state.” As board members attempt to expedite the process, two commissioners advise Republican lawyer Mark Wallace to “stop whining” about so many “questionable” ballots. Meyer also writes about being pursued in the parking lot by a Republican activist who follows him to his car, shouting, “Go back to Massachusetts!” [American Prospect, 12/14/2000]

Senate Majority Leader Tom Daschle (D-SD) tells an interviewer on NBC’s Meet the Press that he “truly” believes Vice President Al Gore won the Florida presidential election. “I’ve talked with most of my colleagues,” he says, “and there isn’t any interest in conceding anything at this point.” Later in the morning, Senator Bob Dole (R-KS) expresses a different view on ABC’s This Week, telling the audience, “If George Bush is certified the winner at 5 or 6 o’clock tonight, I think the great majority of the American people will say, ‘Enough is enough.’” [US News and World Report, 12/13/2000]

Florida Secretary of State Katherine Harris, the co-chair of Florida’s Bush campaign team (see After 3:30 a.m. November 8, 2000 and After), rejects a request by Palm Beach County election officials to give them a brief extension on turning in their recount tallies (see 3:00 p.m., November 16, 2000). This morning, Republican lawyers successfully disrupted the recounting for an hour by arguing about the order in which precincts should be handled (see 4:00 a.m. November 26, 2000). The county misses the 5:00 p.m. deadline by less than three hours, and thusly leaves almost 2,000 ballots unrecounted, though officials continue to count the remaining ballots. Harris decides to reject Palm Beach’s request after conferring with Mac Stipanovich, a Florida Republican lobbyist serving as her political “handler” (see Mid-Morning, November 8, 2000). [US News and World Report, 12/13/2000; Vanity Fair, 10/2004; Leip, 2008] Some media reports say that Democrat Al Gore picked up some 46 votes in the Palm Beach recount, though these votes are not added to the tally; Harris dubs Palm Beach’s entire recount null and void. [Guardian, 11/27/2000; Vanity Fair, 10/2004] Steven Meyer, an election observer for the Democratic Party, writes that when the 5:00 deadline arrived, election officials “had reviewed the challenged ballots in all but 51 of the 637 precincts and Gore had received a net gain of 192 votes in the manual recount.” The entire recount is finished by 7:20 p.m., and Gore’s net gain is 215 votes. Meyer learns that though Harris refused to accept the recount votes from Palm Beach County because it missed the deadline, she had accepted recounts from counties where Bush showed slight gains. Meyer writes, “This resulted in the 537 vote ‘official’ lead that the media is reporting.” Of the recount process itself, Meyer writes: “The Republican spin is that all votes have been counted by machine at least twice in every county. The only trouble is the machines don’t read every vote. The counting includes much more than simply reading the dimpled ballots. In our hand recount, we found many, many ballots on which the voter had indicated a preference, but not punched the ballot in the prescribed way. On some ballots, the voter had darkened in the numbers in each race for the candidate he or she wanted. On others, the voter punched out two different numbers, but wrote ‘Mistake’ or something equally as clear, with an arrow pointing to one of the holes. This shows clear intent to cast a vote for one candidate. The tabulating machine records this as an ‘overvote’ because more than one candidate’s number is punched, and the ballot is disqualified in the machine count.” [American Prospect, 12/14/2000]

Bush supporters in Florida celebrate Katherine Harris’s decision to certify Bush as the winner of the 2000 election. [Source: Salon]Florida Secretary of State Katherine Harris, the co-chair of Florida’s Bush campaign team (see After 3:30 a.m. November 8, 2000 and After), certifies George W. Bush (R-TX) the winner of Florida’s presidential election, though according to a Florida Supreme Court ruling she can choose to accept recount tallies through November 27 (see November 20-21, 2000). She chooses not to do so. Harris says Bush has a 537-vote lead. Her totals are: Bush, 2,912,790; Vice President Al Gore (D-TN), 2,912,253. The totals include none of the recounted ballots from either Palm Beach or Miami-Date Counties, both of which did not complete their recounts by Harris’s deadline (see 9:00 a.m. and after, November 22, 2000 and 2:45 p.m. November 26, 2000). Ongoing legal actions by both parties keep the election in doubt. Regardless, Governor Jeb Bush, George W. Bush’s brother, signs the Certificate of Ascertainment designating 25 Florida electors pledged to George W. Bush and transmits the document to the National Archives as required by Title 3, US Code, Section 6. Three days later, a Florida legislative committee will recommend a special session to name the state’s 25 representatives to the Electoral College, where they will presumably cast their votes for Bush. [US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008] If Bush is indeed the winner of the Florida presidential election, he has enough electoral votes to assume the presidency (see November 9, 2000). The Gore campaign refuses to accept Harris’s certification, and says it will ask Florida courts to order recounts of thousands of disputed votes. Gore’s running mate Joe Lieberman says, “This evening, the secretary of state of Florida has decided to certify what—by any reasonable standard—is an incomplete and inaccurate count of the votes cast in the state of Florida.” The Gore campaign is working out details of what will be a formal “contest” of the results, and will ask a state judge to order court-appointed “special masters” to complete interrupted recounts of about 2,000 uncounted votes in Palm Beach County and 10,700 uncounted votes in Miami-Dade County. They also want an inquiry into the Nassau County returns, where Gore officials believe Bush was wrongly credited with some 51 votes, and are considering challenging the legality of Palm Beach’s controversial “butterfly ballots.” Gore’s chief lawyer David Boies says: “We’re preparing contest papers that will be filed Monday, as early in the day as we can get them done. Until these votes are counted, this election cannot be over.” Republicans intend to use Harris’s ruling to publicly pressure Gore into conceding the election, pressure the Gore campaign says it is prepared to combat. Miami-Dade County, expected to yield enough votes in a recount to swing the election in favor of Gore, called off its recount under pressure from Republican protesters and due to time constraints (see 9:00 a.m. and after, November 22, 2000). [Salon, 11/25/2000; Guardian, 11/27/2000; Guardian, 11/28/2000] Investigative reporter Robert Parry will later write that Harris deliberately allowed Nassau County to throw out its recounted figures that gave Gore the 51 votes. [Consortium News, 8/5/2002] A brief furor ensues when some media outlets mistakenly report that 500 absentee ballots “not previously counted” were discovered in Broward County. The story is not true. [Salon, 11/25/2000] According to state law, it is only now that Gore can ask for a statewide recount. [Vanity Fair, 10/2004] Former President Jimmy Carter tells a reporter: “More than two weeks will remain before Florida’s 25 electors will have to be named, and then two more months before a new president will be sworn into office. We must not sacrifice speed for accuracy in deciding who has been chosen by the voters to take that oath.” [Salon, 11/25/2000]

Refusing to accept the certification of George W. Bush as the winner of the Florida presidential election (see 7:30 p.m. November 26, 2000), Vice President Al Gore’s campaign files an election contest action challenging the election results in Palm Beach, Miami-Dade, and Nassau Counties. Gore campaign officials believe Gore was denied a net gain of over 1,100 uncounted votes in Palm Beach and 750 in Miami-Dade (see November 7, 2000). In Nassau, Gore officials believe Bush was wrongly credited with 51 votes. “The vote totals reported in the election canvassing commission’s certification of November 26, 2000, are wrong,” Gore lawyers allege in court filings. It is the first formal contest challenge in the history of US presidential elections. The case is assigned by random computer selection to Judge N. Saunders Sauls. Gore lawyers also challenge vote totals in three Florida counties, and ask a state judge to order a manual recount of some 13,000 ballots in Palm Beach and Miami-Dade Counties that showed no votes for president on machine runs (so-called “undervotes”). Gore lawyers also file an emergency motion to accelerate the contest proceedings, a motion that Bush lawyers will challenge the next day. Bush campaign lawyers file an appeals court motion seeking to delay oral arguments in a pending federal case challenging Florida’s hand recounts. A Seminole County lawsuit seeking to throw out some 4,700 absentee ballots for technical reasons (see November 12, 2000, November 15-17, 2000, and November 17, 2000) is moved to a state court in Leon County, which is also hearing the Gore campaign’s certification challenges. And a lawsuit challenging the validity of Palm Beach County’s “butterfly ballot” (see 10:46 a.m. November 20 - November 22, 2000) goes to the Florida Supreme Court, which will reject the suit on December 1. [Guardian, 11/28/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]

After Florida Secretary of State Katherine Harris, the co-chair of Florida’s Bush campaign team (see After 3:30 a.m. November 8, 2000 and After), certifies George W. Bush (R-TX) the winner of Florida’s presidential election (see 7:30 p.m. November 26, 2000), the Bush campaign continues publicly—“ostentatiously,” to quote one London newspaper—preparing for Bush to transition into the White House, naming possible cabinet members and requesting that the General Services Administration (GSA) fund a transition office for Bush to prepare to ascend to the presidency. Andrew Card, a former General Motors executive whom Bush has said will be his chief of staff, says of Bush, “He’s getting ready to be a great president.” Bush’s chief of staff in Texas, Clay Johnson, heads the transition team and Ari Fleischer serves as press secretary. Senate Majority Leader Trent Lott (R-MS) has told Senate committee chairpersons to convene their members on January 4, 2001 to begin confirmation hearings on Bush cabinet nominees. The GSA, however, has not gone along with the push. GSA officials say that the 80,000 square feet of Washington office space will stay locked until either Bush or Democrat Al Gore is certified as president. Instead, says Bush’s running mate Dick Cheney, the campaign will set up transition offices funded by private contributions. “We feel it is our obligation to the American people to honor their votes by moving forward and assembling the administration they’ve chosen,” he says. [Guardian, 11/28/2000; Forbes, 2011]

Democratic Congressional leaders Senator Tom Daschle (D-SD) and Representative Richard Gephardt (D-MO) hold a televised conference call with Vice President Al Gore and his running mate, Senator Joe Lieberman (D-CT), in a show of support for the Gore campaign efforts to stop Florida from certifying George W. Bush as the winner of the state presidential race (see 7:30 p.m. November 26, 2000). “What we’re talking about involves many thousands of votes that have never been counted at all,” Gore tells Daschle and Gephardt. [Guardian, 11/28/2000; US News and World Report, 12/13/2000]

Five minutes before the start of the Monday Night Football broadcast, Vice President Al Gore delivers a brief, nationally televised address defending his decision to contest the election (see November 27, 2000). “Our Constitution matters more than convenience,” he tells viewers. All he wants, he says, is “a complete count of all the votes cast in Florida,” noting that “many thousands of votes… have not yet been counted at all, not once.” [US News and World Report, 12/13/2000]

The Gore presidential campaign asks Leon County Circuit Court Judge N. Saunders Sauls to authorize an immediate recount of about 14,000 disputed “undervote” ballots. Instead of ordering an immediate recount, Sauls orders the disputed ballots, sample voting booths, and voting machines from Miami-Dade and Palm Beach counties brought to his courtroom in Tallahassee by Friday, December 1—a total of 1.1 million ballots, posing a tremendous logistical challenge to election boards in the two counties. On November 30, a truck carrying more than 460,000 presidential ballots from Palm Beach County leaves on its way to Tallahassee as ordered by Sauls. On December 1, two more trucks carrying over 654,000 ballots begin the long drive to Tallahassee from Miami. On December 1, the Bush campaign asks Sauls to have another 1.2 million ballots trucked in from Volusia, Broward, and Pinellas Counties; Bush campaign spokesman Scott McClellan says, “We believe there were a number of illegal votes for Gore in those counties.” Sauls does not grant this request. The trial begins on December 2, with Gore’s lawyers arguing, “There is no reason to delay counting ballots even one day.” Bush’s lawyers advance a number of arguments against expediting or even conducting the recounts, including the position that the dispute is not between Bush and Gore, but between two disparate groups of Florida electors. Bush lawyers also say that Gore’s lawyers missed a 10-day deadline to file such challenges; manually recounting only some ballots is illegal; and the recounts the Gore campaign wants are “illegal, inappropriate, and manifestly unfair.” On December 4, Sauls rules against the Gore campaign (see 4:43 p.m. December 4, 2000). [US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008; Guardian, 11/30/2008; Guardian, 12/1/2008]

A “Select Committee” of the Florida State Legislature meets to discuss appointing its own slate of electors to vote for George W. Bush in the Electoral College. [Source: C-SPAN]A Florida legislative committee dominated by Republicans debates on whether the legislature should call a special session to appoint its own slate of electors to vote in the US Electoral College. The Republicans fear that Democrat Al Gore, with help from Florida courts, might block Republican George W. Bush from winning Florida’s electoral votes (see November 27, 2000). [US News and World Report, 12/13/2000]

Vice President Al Gore leaves the vice-presidential residence in Washington and publicly asks the Bush campaign to stop trying to “run out the clock” on further recounts in Florida. “This is not a time for… procedural roadblocks,” Gore says (see November 27, 2000). [US News and World Report, 12/13/2000]

Pundit and editor Michael Kelly, recently fired by the New Republic for his continued partisan attacks on the Gore campaign, accuses Democratic presidential candidate Al Gore and his campaign of trying to steal the Florida election, and the presidency, through the courts. Kelley says that Gore’s “theft” is being facilitated by the Democratic Party. Kelly falsely states that most polls show “60 percent to 70 percent” of Americans want Gore to concede immediately (see November 12 - December 10, 2000), and says, again falsely, that Democratic “leaders and elders” are working in “virtual lockstep” to “stand behind their defeated candidate’s unprecedented defiance of democracy’s national edict” (see November 8, 2000, Morning, November 8, 2000, and November 10, 2000). The “Clinton-Gore crowd,” Kelly writes, has “created a crisis that would wreak more destruction than” the Clinton impeachment. “But with these men of fathomless selfishness, there is always more damage to be done. There is always another institution, another principle, another person that must be destroyed—for the greater good of their greater power.” Kelly says that Gore has relentlessy ignored “the results of a fair and full recount that confirmed his loss (see Early Morning, November 8, 2000 and November 9, 2000), and demanded hand recounts only in selected Democratic counties” (see November 9, 2000). Kelly goes on to claim that Gore manipulated the Florida courts to “rewrit[e] Florida election law” to continue the standoff, “and still lost—a third time—to Bush.” When Gore promises to stand by the results of the manual recounts, Kelly says he is “lying” and has no such intentions. Kelly calls into question the Democratic election officials’ figures in Broward County, accusing the two Democratic officials of inventing votes over the objections of the single Republican official. Kelly concludes: “Democrats accuse Republicans of seeking to delegitimize a Gore presidency. Gore seeks more; if he doesn’t get his way he threatens to delegitimize democracy itself. Got to burn that village down.” [Jewish World Review, 11/29/2000; Center for American Progress, 12/9/2010]

The clerks for the four liberal justices at the Supreme Court—John Paul Stevens, Stephen Breyer, David Souter, and Ruth Bader Ginsburg—continue their speculation as to whether the Court will actually attempt to decide the presidential election ((see November 20-21, 2000 and November 22-24, 2000), especially in light of Florida’s recent attempt to certify George W. Bush as the winner (see 7:30 p.m. November 26, 2000). At a November 29 dinner attended by clerks from several justices, a clerk for Justice Sandra Day O’Connor tells the group that O’Connor is determined to overturn the Florida Supreme Court’s decision to go ahead with manual recounts of election ballots (see 3:00 p.m., November 16, 2000). One clerk recalls the O’Connor clerk saying, “she thought the Florida court was trying to steal the election and that they had to stop it.” O’Connor has the reputation of deciding an issue on her “gut,” then finding legal justifications for supporting her decision. Unbeknownst to anyone outside the Court, O’Connor has already made up her mind. Gore lawyers in particular will spend endless hours trying to craft arguments to sway her vote, when the actual case will come down to Justice Anthony Kennedy, who originally wanted to accept the case. Many clerks of both liberal and conservative justices have little respect or regard for Kennedy. They consider him, according to a 2004 Vanity Fair article, “pompous and grandiloquent.” They believe he fills his office with elaborate, expensive decorations and trappings, including an elaborate chandelier, to give the idea of his power and importance. “The clerks saw his public persona—the very public way in which he boasted of often agonizing over decisions—as a kind of shtick, a very conspicuous attempt to exude fairness and appear moderate, even when he’d already made up his mind,” according to the Vanity Fair article. Conservative clerks suspect Kennedy of untoward liberal leanings, and have taken steps to ensure that the clerks he receives are ideologically sound. One liberal clerk later explains the conservative justices’ reasoning, saying, “The premise is that he can’t think by himself, and that he can be manipulated by someone in his second year of law school.” By now, Kennedy is surrounded by clerks from the hard-right Federalist Society. “He had four very conservative, Federalist Society white guys, and if you look at the portraits of law clerks on his wall, that’s true nine times out of 10,” another liberal law clerk will recall. “They were by far the least diverse group of clerks.” The conservative and liberal clerks do not socialize with one another as a rule, so it is unusual when, a day after the clerk dinner, Kevin Martin, a clerk for conservative justice Antonin Scalia, visits Stevens’s chambers. Martin went to Columbia Law School with Stevens’s clerk Anne Voigts, and he wants to see if he can explain to her the conservatives’ judicial point of view. However, two other Stevens clerks, Eduardo Penalver and Andrew Siegel, believe Martin is on some sort of reconnaissance mission, attempting to find out what grounds Stevens will cite to argue against overturning the Florida decision. Penalver and Siegel believe Martin is trying to manipulate Voigts, and Martin, after telling them to “F_ck off!” storms out of Stevens’s chambers. Clerks from O’Connor’s staff pay similar visits to other liberal justices, though these conversations do not end so contentiously. [Vanity Fair, 10/2004] O’Connor said to partygoers when the news networks announced the election for Al Gore, “This is terrible” (see After 7:50 p.m. November 7, 2000).

Dick Cheney, the Republican candidate for vice president, orders the opening of a transition office in McLean, Virgina, for the presumptive transfer of power from President Clinton to “President-elect” Bush (see November 27, 2000 and After). The General Services Administration, citing the still-disputed election, refuses to allocate funds or office space to Bush, so Cheney uses private donations to open the office. [Leip, 2008] Cheney made a press announcement of the decision three days earlier. [US News and World Report, 12/13/2000]

Democrats for the presidential campaign of Al Gore file papers in the Florida Supreme Court asking the Court to order an immediate hand recount of some 14,000 disputed “undervote” ballots in two heavily Democratic Florida counties, Miami-Dade and Palm Beach (see November 28 - December 2, 2000). Any delay, the Gore lawyers argue, would make it a “virtual impossibility” to resolve the issue by the December 12 deadline for presidential certification. On December 1, the Court will reject the request. [Supreme Court of Florida, 12/1/2000 ; US News and World Report, 12/13/2000; Leip, 2008]

A Republican-dominated panel in the Florida Legislature votes to recommend convening a special session of the legislature (see 1:00 p.m. November 28, 2000) to designate the state’s 25 electors and send them to Washington to cast the state’s ballots for George W. Bush even if the election is not resolved by December 12, when all states are to officially certify a winner of their presidential contests. The previous day, Florida Governor Jeb Bush, the brother of George W. Bush, said it would be an “act of courage” for the legislature to call a special session “if it was the appropriate thing to do.” The legality of designating electors in such a fashion is questionable; Democratic vice-presidential candidate Senator Joe Lieberman says such a decision “threatens to put us into a constitutional crisis.” Shortly after Lieberman’s comments, candidate Bush meets with reporters outside his Crawford, Texas, ranch, flanked by vice-presidential candidate Dick Cheney and putative Bush Secretary of State designate General Colin Powell. Bush says, “One of our strategies is to get this election ratified, and the sooner the better for the good of the country.” [US News and World Report, 12/13/2000; Guardian, 11/30/2008]

Texas Federal District Court Judge Sidney Fitzwater rejects a voter lawsuit arguing that Dick Cheney is an inhabitant of Texas and thus ineligible to receive votes of Texas electors. The Constitution bars a presidential and vice-presidential candidate running together from being from the same state. Until November 2000, Cheney’s primary residence was his home in Dallas, Texas; George W. Bush lives in Crawford, Texas. In November, Cheney transferred his residence to his vacation home in Jackson Hole, Wyoming. On December 7, an appeals court will affirm Fitzwater’s ruling. [US News and World Report, 12/13/2000; Leip, 2008]

The Eleventh US Circuit Court of Appeals in Atlanta agrees to hear two separate but related cases challenging the Florida ballot manual count. The cases, brought by individuals but joined by the Bush campaign, argue that recounts by hand are unfair and unconstitutional. Both lawsuits are rejected. [Leip, 2008]

Florida Democratic voters file a lawsuit to throw out 9,773 absentee-ballot votes in Martin County; two-thirds of them are votes for George W. Bush. Democrats charge that, as in Seminole County (see November 12, 2000, November 15-17, 2000, and November 17, 2000), Republican officials illegally added voter ID numbers to Republican applications for absentee ballots, rendering the once-invalid ballots able to be counted. Judge Terry Lewis sets a trial date of December 6. [US News and World Report, 12/13/2000]

The US Supreme Court hears oral arguments on the Bush presidential campaign’s challenge on constitutional grounds of Florida Supreme Court’s ruling on selective manual recounts (see November 20-21, 2000). The case is Bush v. Palm Beach Canvassing Board. Throngs of protesters surround the Supreme Court building. Inside, the justices’ questions indicate that they are divided on the legality of the Florida high court’s intervention, and some justices seem to think that Florida courts should resolve the issue. Justice Anthony Kennedy says, “We’re looking for a federal issue.” Justice Stephen Breyer asks, “What’s the consequence of our going one way or the other now in this case?” Observers will later describe Laurence Tribe, an experienced Supreme Court litigator representing the Gore campaign, as listless and flat, while Theodore Olson, arguing the Bush campaign’s case, is “more impressive.” Chief Justice William Rehnquist and Justice Antonin Scalia give the impression that they believe the Florida Supreme Court encroached on the Florida legislature’s bailiwick. Justices Kennedy and Sandra Day O’Connor (see After 7:50 p.m. November 7, 2000 and (November 29, 2000)) express their irritation with the Gore arguments. When the arguments are over, the justices meet in chambers for the usual conference. At one end of the argument is Scalia, who wants to overturn the Florida decision and in essence award George W. Bush the election, and at the other, Justice John Paul Stevens, who wants the Court to stay out of the case altogether. Neither justice can command a majority among the other seven. Rehnquist begins drafting a ruling asking the Florida high court to clarify its ruling, to cite the state constitution in its decision (which the Bush team had argued would have been improper), or under state law (which the Bush team had found arguably permissible). All nine justices eventually sign onto Rehnquist’s opinion. A 2004 Vanity Fair article will observe: “The unanimity was, in fact, a charade; four of the justices had no beef at all with the Florida Supreme Court, while at least four others were determined to overturn it. But this way each side could claim victory: the liberal-to-moderate justices had spared the Court a divisive and embarrassing vote on the merits, one they’d probably have lost anyway. As for the conservatives, by eating up Gore’s clock—Gore’s lawyers had conceded that everything had to be resolved by December 12—they had all but killed his chances to prevail, and without looking needlessly partisan in the process. With the chastened Florida court unlikely to intervene again, the election could now stagger to a close, with the Court’s reputation intact, and with Bush all but certain to win.” On December 4, in a setback for the Gore campaign, the Court unanimously sets aside the Florida Supreme Court ruling and remands for clarification the Florida Supreme Court’s decision. [Supreme Court of the United States, 12/4/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Vanity Fair, 10/2004; Leip, 2008]

The president of the Florida Senate, Republican John McKay, decides not to call a special session of the Florida Legislature to independently select a slate of electors to vote for George W. Bush in the US Electoral College (see 11:45 a.m. November 30, 2000). McKay decides to ruminate on the matter over the weekend. [US News and World Report, 12/13/2000]

The Florida Supreme Court dismisses a petition from the Gore campaign to order an immediate recount of over 12,000 “undervotes” from Miami-Dade and Palm Beach Counties. “Undervotes” are ballots that did not register a choice for president when run through the machine counter. An hour later, the same court rules that Palm Beach’s controversial “butterfly ballot” is legal (see 7:00 a.m. November 7, 2000 and After and November 27, 2000). [US News and World Report, 12/13/2000]

Leon County, Florida, Judge N. Saunders Sauls rules against the Gore campaign in the recount issue (see November 28 - December 2, 2000), saying that manual recounts in Miami-Dade and Palm Beach Counties are not warranted, and the Nassau County vote totals should stand. Sauls also refuses to block Florida’s certification of George W. Bush as the Florida presidential winner (see 7:30 p.m. November 26, 2000). The London Guardian calls the ruling a “crushing blow” to Al Gore’s chances of winning the disputed election. Sauls rules that there is “no credible statistical evidence and no other competent substantial evidence” to establish a reasonable probability that Gore might win if granted a hand recount of the undervotes. “This court… concludes the evidence does not establish any illegality, dishonesty, improper influence, coercion, or fraud in the balloting and counting processes,” Sauls rules. The ruling also restores Bush’s 930-vote lead that existed before recount numbers were taken into account (see November 18, 2000). After Saul’s ruling, Gore’s lead attorney David Boies says the campaign will appeal the ruling to the Florida Supreme Court, and that the campaign had always assumed the case would end up in that court. “What has happened today is that we have moved one step closer to having this finally resolved,” he tells reporters, but admits that in this instance, “They won, we lost.” Boies notes that after the incredible effort expended to bring over a million ballots to Sauls’s courtroom, the judge never looked at them. “The ballots were the best evidence of the intents of the voters,” Boies says. “This was the first court in an election contest where the court has refused to look at the ballots.” The Florida high court will hear the appeal on December 7. [Circuit Court of the Second Judicial Circuit, In and For Leon County, Florida, 12/4/2000 ; Guardian, 12/5/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]

Two lawsuits filed by Florida Democrats challenging the validity of some Florida absentee ballots are heard in Tallahassee. Judge Nikki Clark hears the Seminole County absentee ballot case (see November 12, 2000, November 15-17, 2000, November 17, 2000, and November 27, 2000) and Judge Terry Lewis presides over a similar challenge filed against Martin County ballots. (The Gore campaign has declined to join either lawsuit, though Vice President Al Gore has said it “doesn’t seem fair to me” that Republicans but not Democratic operatives in those counties were allowed to add and correct voter ID numbers on absentee ballot applications. The Bush campaign has joined the opposing side of both lawsuits.) Both Clark and Lewis reject the lawsuits. The Florida Supreme Court will uphold their rulings. [US News and World Report, 12/13/2000; Leip, 2008] Democratic leaders are beginning to edge away from continued support for Gore’s attempts to secure the election. Senator Richard Durbin (D-IL) says, “This is coming to an end.” A George W. Bush presidency, he says, “looks more and more” likely. [Guardian, 12/8/2000]

The Bush campaign continues to engage in pre-inaugural transition activities, giving the public the impression that George W. Bush has won the presidency and is preparing to assume the office (see November 27, 2000 and After). After meeting with his foreign policy advisor Condoleezza Rice, Bush says he has “pretty well made up my mind” on whom to name to his White House staff. His transition team’s slogan is “Bringing America Together.” [US News and World Report, 12/13/2000]

Florida Senate President John McKay and House Speaker Tom Feeney, both Republicans, announce a special session of the Florida Legislature that will convene on December 8 to consider designating its own slate of electors should the results of the Florida vote remain tied up in the courts (see 11:45 a.m. November 30, 2000). The last time a legislature chose electors was 1876. House Democratic Minority Leader Lois Frankel says that “it is just plain wrong for the Florida Legislature to elect the next president of the United States.” [US News and World Report, 12/13/2000]

David Boies. [Source: BBC]The Florida Supreme Court hears arguments from both the Gore and Bush presidential campaigns in Al Gore’s appeal of a ruling that rejected his campaign’s request to mandate recounts in three Florida counties (see 9:00 a.m. November 30, 2000 and After). Bush campaign lawyer Barry Richard argues that there is no “evidence to show that any voter was denied the right to vote” and calls the Gore campaign’s contest “a garden-variety appeal.” Gore lawyer David Boies contends that while time is running out, “the ballots can be counted” before the December 12 deadline for naming electors. In a 4-3 decision, the Court reverses the decisions of Judge N. Saunders Sauls (see 4:43 p.m. December 4, 2000), ordering recounts of “undervotes” in Miami-Dade and Palm Beach counties as well as all other Florida counties that have not yet manually recounted undervotes. “Undervotes” are noted on ballots that were not recorded by voting machines as making a choice for president. The Court also directs the lower court to add 168 votes from Miami-Dade and 215 votes from Palm Beach to Gore’s state totals, narrowing the George W. Bush lead to a mere 154 votes. London’s Guardian observes, “That margin could easily be overturned with a recount of the disputed ballots which mainly came from Democratic precincts in Miami-Dade.” Perhaps 45,000 undervotes statewide remain to be counted. Bush campaign attorney James Baker says the Court’s ruling may “disenfranchise Florida’s votes in the Electoral College.” Congressional Democrats Richard Gephardt (D-MO) and Tom Daschle (D-SD) release a joint statement calling for a “full, fair, and accurate vote count,” and saying there is “more than enough time to count ballots cast but never counted.” Within hours, Bush lawyers ask the US Supreme Court for an emergency stay of the decision, which will be granted (see December 8-9, 2000). [Supreme Court of Florida, 12/8/2000 ; Guardian, 12/9/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008] The Court decision is also seen as something of a repudiation of the Supreme Court’s earlier decision for clarification (see 10:00 a.m. December 1 - 4, 2000). Clerks for the Supreme Court justices are now certain that their Court will decide the presidential election. Justice Antonin Scalia, the most implacable of the conservative justices determined to overturn the Florida high court and give the election to Bush, wants to grant the Bush request for a stay even before receiving the Gore lawyers’ response, a highly unusual request that is not granted. He argues that the manual recounts are in and of themselves illegitimate, and says the recounts will cast “a needless and unjustified cloud” over Bush’s legitimacy. It is essential, he says, to shut down the process immediately. Clerks for both the liberal and conservative justices are amazed, and some appalled, at how bluntly Scalia is pushing what appears to be a partisan agenda. [Vanity Fair, 10/2004]

The Bush campaign seeks stays in the Florida Supreme Court, the Eleventh Circuit Court of Appeals, and the US Supreme Court regarding the acceptance of 43,852 “undervote” recounts in Florida counties. Most importantly, the Bush campaign also asks the US Supreme Court for a writ of certiorari, which would declare its candidate the winner of the Florida presidential election. Both the Florida Supreme Court and Eleventh Appeals Court refuse to issue the stay. Most observers believe that if the recounts are completed and their vote totals tabulated, Democrat Al Gore will win enough votes to win Florida, and thusly become president. Currently Republican George W. Bush has a mere 193-vote lead (see December 7-8, 2000), and recount totals from Miami-Dade County alone are expected to give Gore more than this amount. One example of the problematic situation in Florida is with Duval County, which includes the city of Jacksonville, where claims of massive African-American disenfranchsement and discrimination (see November 7, 2000) have already tainted the balloting. Duval has 4,967 undervotes, but they are mixed in with 291,000 others, all stored in boxes in a vault. The all-Republican electoral board, as seen on national television, has begun examining ballots, but as The Guardian observes, “with such painstaking reluctance to proceed, it amounted to an effective filibuster.” Democratic spokeswoman Jenny Backus tells reporters, “What we’ve heard is that they’re going to try to slow this down by every means they can.” However, the US Supreme Court issues the requested stay and the undervote tabulation stops. The Court does not issue the requested writ of certiorari. [Supreme Court of the United States, 12/8/2000 ; Supreme Court of the United States, 12/9/2000 ; Guardian, 12/10/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008] The divide among the nine US Supreme Court justices is plain. The five conservative justices, led by Antonin Scalia, have since December 4 been circulating memos among themselves and their clerks, bouncing various arguments off one another in what the liberal justices’ clerks feel is an attempt to audition and solidify their arguments in favor of overturning the Florida high court’s decision and giving the presidency to Bush. The four liberal justices, led by John Paul Stevens, have long felt that the Court had no business being involved in the issue, that it was instead up to the Florida judiciary and legislature to settle the matter. Stevens, writing the anticipated dissent for the minority, has to ask the majority for more time to complete his dissent, so eager are they to issue their ruling. When Scalia sees in Stevens’s dissent the line that says, “counting every legally cast vote cannot constitute irreparable harm”—a direct rebuke to Scalia’s earlier argument that the Florida recounts would do “irreparable harm” to a Bush presidency—Scalia inadvertently delays the proceedings to write his own angry rejoinder, which reads in part, “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Scalia’s nakedly partisan stance discomfits even some of the other conservative justices’ clerks and angers the liberal clerks. “The Court had worked hard to claim a moral high ground, but at that moment he pissed it away,” one later recalls. “And there was a certain amount of glee. He’d made our case for us to the public about how crassly partisan the whole thing was.” After Scalia finishes his rejoinder, the Court issues its stay, stopping all further recounts. Gore himself, unaware of the arguments and partisanship dividing the Court, still holds out hope that one of the conservatives—O’Connor or Anthony Kennedy, perhaps (see After 7:50 p.m. November 7, 2000 and (November 29, 2000))—can be reached. “Please be sure that no one trashes the Court,” he admonishes his staffers. Gore decides to have campaign lawyer David Boies instead of Laurence Tribe argue the campaign’s case in the upcoming arguments, perhaps hoping that Boies, more moderate than the outspokenly liberal Tribe, might win some support from either Kennedy or O’Connor. Boies has also been representing Gore in Florida, and can presumably reassure the justices of the fundamental fairness of what is happening there. The liberal clerks have no such illusions. What hopes they have now are pinned on the press. One has heard a rumor that the Wall Street Journal is preparing to publish a story reporting that O’Connor had been overheard at a dinner party expressing her opposition to a Gore presidency; that report, the clerks hope, might force O’Connor to recuse herself from the decision and tie the court at 4-4. However, O’Connor has no such intention. Gore’s lawyers, aware of O’Connor’s statements, consider asking her to recuse herself, but decide instead to restrain themselves in hopes that she will, according to a 2004 Vanity Fair article, “now lean toward them to prove her fairness.” [Vanity Fair, 10/2004]

An artist’s rendition of the nine Court justices hearing oral arguments in the ‘Bush v. Gore’ case. [Source: Authentic History]The US Supreme Court begins hearing oral arguments in the lawsuit Bush v. Gore on the Florida recounts and election results. The Bush campaign has challenged the legality of a Florida Supreme Court ruling mandating the recounting of “undervote” ballots (see December 7-8, 2000). Bush lawyers argue that manual recounts violate the Constitution’s mandate of equal protection. Gore lawyers argue that the overriding issue is the importance of counting each vote cast. By the afternoon, the public is hearing the arguments via audiotapes. Justice Antonin Scalia, one of the Court’s most hardline conservatives, drew criticism when he said in an earlier opinion that the majority of the Court believed that George W. Bush had “a substantial probability of success,” a conclusion disputed by other justices such as John Paul Stevens. Scalia now says that he is inclined to vote in favor of Bush because, he says, “the counting of votes that are of questionable legality does in my view threaten irreparable harm [to Bush]” (see December 8-9, 2000). [Guardian, 12/11/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]Kennedy Determines that 'Equal Protection' Is Key to Reversing Florida Decision - Al Gore’s lawyers, led by David Boies, believe that one of the Bush team’s arguments is flawed: the idea that the Florida Supreme Court exceeded its bounds restricts one appellate court far more than another appellate court is willing to condone. Unbeknownst to the Gore lawyers, Justice Anthony Kennedy agrees with the Gore team on this issue. Kennedy has no intention of finding in favor of the Gore position, but he does want the other four conservatives on the bench to come together behind the Bush argument that using different standards for ballot evaluation in different counties violates the equal-protection clause of the Constitution, an argument that most of the justices, litigants, and clerks have not considered up until now. As a practical matter, enforcing a single standard of ballot evaluation among the disparate Florida counties would be virtually impossible. And the Court under the leadership of Chief Justice William Rehnquist has, until now, been reluctant to interpret the equal-protection clause except in the narrowest of circumstances. Neither the Bush nor the Gore lawyers had given that argument a lot of attention, but it will prove the linchpin of the Court’s majority decision. As oral arguments proceed, and Kennedy pretends to not understand why this is a federal argument, clerks for the liberal justices find themselves sourly amused at Kennedy’s pretense. “What a joke,” one says to another. When Kennedy cues Bush lawyer Theodore Olson that he is interested in the equal protection clause as an argument—“I thought your point was that the process is being conducted in violation of the equal-protection clause, and it is standardless”—Olson quickly pivots and begins building his case under that rubric. Liberal justices Stephen Breyer and David Souter use the equal-protection argument to suggest that the best and simplest solution is simply to remand the case back to the Florida Supreme Court and ask it to set a uniform standard. Breyer has been working for days to convince Kennedy to join the four liberals in sending the case back to Florida, and for a time during the oral arguments, believes he may have succeeded. The liberal clerks have no such hopes; they believe, correctly, that Kennedy is merely pretending to consider the option. “He probably wanted to think of himself as having wavered,” one clerk later says. A brief private chat with Scalia and his clerks during oral arguments may have swayed Kennedy back into the fold, assuming he is wavering at all. Demands for Identical Standards among All Florida Counties - Justice Sandra Day O’Connor (see After 7:50 p.m. November 7, 2000 and (November 29, 2000)) rails at Boies over the idea that the 67 counties cannot all have the same standards of ballot evaluation, and shows impatience with Boies’s explanation that for over 80 years, the Florida courts have put the idea of “voter intent” over identical ballot identification standards. [Vanity Fair, 10/2004]

The US Supreme Court issues a ruling in Bush v. Gore (see December 11, 2000) that essentially declares George W. Bush (R-TX) the winner of the Florida presidential election, and thusly the winner of the US presidential election (see Mid-to-Late November 2000). The decision in Bush v. Gore is so complex that the Court orders that it not be used as precedent in future decisions. The 5-4 decision is split along ideological lines, with Justices Sandra Day O’Connor (see After 7:50 p.m. November 7, 2000 and (November 29, 2000)) and Anthony Kennedy, two “moderate conservatives,” casting the deciding votes. In the per curium opinion, the Court finds: “Because it is evident that any recount seeking to meet the Dec. 12 date will be unconstitutional… we reverse the judgment of the Supreme Court of Florida ordering the recount to proceed.… It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.” The decision says that the recounts as ordered by the Florida Supreme Court suffer from constitutional problems (see December 7-8, 2000). The opinion states that differing vote-counting standards from county to county and the lack of a single judicial officer to oversee the recount violate the equal-protection clause of the Constitution. The majority opinion effectively precludes Vice President Al Gore from attempting to seek any other recounts on the grounds that a recount could not be completed by December 12, in time to certify a conclusive slate of electors. The Court sends the case back to the Florida Supreme Court “for further proceedings not inconsistent with this opinion.” Four justices issue stinging dissents. Justice John Paul Stevens writes: “One thing… is certain. Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.” Justice Stephen G. Breyer adds that “in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the court itself.” [Per Curiam (Bush et al v. Gore et al), 12/12/2000; US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]Drafting Opinions - After oral arguments concluded the day before, Chief Justice William Rehnquist said that if they were to remand the case back to Florida, that order must go out immediately in light of the approaching deadline for certification of results; Stevens quickly wrote a one-paragraph opinion remanding the case back to Florida and circulated it, though with no real hope that it would be adopted. The five conservative justices are determined to reverse the Florida decision. For the rest of the evening and well into the next day, December 12, the justices work on their opinions. Stevens prepares the main dissent, with the other three liberal justices preparing their own concurrences. Stevens and Justice Ruth Bader Ginsburg find no support whatsoever for the equal-protection argument, and say so in their writings. Justices Breyer and David Souter give the idea some weight; Souter says that the idea of uniform standards is a good one, but these standards should be created and imposed by the Florida judiciary or legislature. Stopping the recounts solves nothing, he writes. It soon becomes apparent that neither Kennedy nor O’Connor share Rehnquist’s ideas on the jurisdiction of the Florida court, and will not join him in that argument. Kennedy writes the bulk of the majority opinion; as predicted, his opinion focuses primarily on the equal-protection clause of the Constitution. The liberal justices and clerks find Kennedy’s reasoning that stopping the recounts is the only way to ensure equal protection entirely unconvincing. Anthony Scalia circulates a sealed memo complaining about the tone of some of the dissents, asking that the dissenters not call into question the Court’s credibility. (His memo prompts Ginsburg to remove a footnote from her dissent commenting on Florida’s disenfranchised African-American voters; some of the liberal clerks see the incident as Ginsburg being bullied into compliance by Scalia. Subsequent investigations show that thousands of legitimate African-Americans were indeed disenfranchised—see November 7, 2000.) Kennedy sends a memo accusing the dissenters of “trashing the Court,” and says that the dissenters actually agree with his equal-protection argument far more than they want to admit. When he has a line inserted into his opinion reading, “Eight Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy,” some of Stevens’s clerks angrily telephone Kennedy’s clerks and accuse them of misrepresenting Stevens’s position. They demand that the line be removed. Kennedy refuses, and Stevens rewrites his opinion so that he is no longer associated with the position. Kennedy is forced to rewrite the statement to say that “seven,” not “eight” justices agree with his position. One of Stevens’s clerks, Eduardo Penalver, tells Kennedy clerk Grant Dixton that what Kennedy had done was disgusting and unprofessional. Breyer and his clerks are also unhappy about Kennedy’s assertion, but take no action. The line prompts many in the media to claim, falsely, that the decision is a 7-2 split and not a 5-4. The main document, a short unsigned opinion halting the recounts, is written by Kennedy. Two portions are particularly notable: Kennedy’s assertion that the ruling applies only to Bush, and not to future decisions; and that the Court had only reluctantly accepted the case. “That infuriated us,” one liberal clerk later recalls. “It was typical Kennedy bullsh_t, aggrandizing the power of the Court while ostensibly wringing his hands about it.” Rehnquist, Scalia, and Justice Clarence Thomas join the decision, though Scalia is unimpressed with Kennedy’s writing and reasoning. Reportedly, he later calls it a “piece of sh_t,” though he will deny making the characterization. Lack of Consensus - The lack of consensus between the conservative justices is relatively minor. Among the four liberal justices, though, it is quite pronounced—though all four wish not to end the recounts, only Stevens has a strong position and has stayed with it throughout the process. Souter, Ginsburg, and Breyer were far less certain of their opposition, and resultingly, their dissents, unlike the impassioned Stevens dissent, are relatively pallid. Some of the liberal clerks say that the four’s lack of consensus helped the solid conservative majority stay solid: “They gave just enough cover to the five justices and their defenders in the press and academia so that it was impossible to rile up the American people about these five conservative ideologues stealing the election.” Final Loss - Gore, reading the opinion, finally realizes that he and his campaign never had a chance with the five conservative justices, though they had hoped that either O’Connor or Kennedy would join the four liberals (see (November 29, 2000)). He congratulates his legal team, led by David Boies, and commends it for making it so difficult for the Court to justify its decision. Some reports will circulate that Souter is depressed over the decision, with Newsweek reporting that he later tells a group of Russian judges that the decision was “the most outrageous, indefensible thing” the Court had ever done. He also reportedly says that had he had “one more day,” he could have convinced Kennedy to turn. However, Souter will deny the reports, and those who know him will say that such comments would be out of character for him. For her part, O’Connor will express surprise that anyone could be angry over the decision. As for Scalia, some Court observers believe that his open partisanship during the process will cost him any chance he may have had to be named chief justice. [Vanity Fair, 10/2004]

Al Gore giving his concession speech. His running mate, Joe Lieberman, and Gore and Lieberman family members look on. [Source: Authentic History]Vice President Al Gore is out of options after the US Supreme Court halted all Florida recounts (see 9:54 p.m. December 12, 2000). He orders his Florida recount committee to suspend its activities. At 9:00 p.m., Gore, accompanied by his wife Tipper, his vice-presidential running mate Joe Lieberman, and Lieberman’s wife Hadassah, gives a nationally broadcast speech. He tells the nation he accepts George W. Bush as the legitimate 43rd president of the United States. “This is America, and we put country before party,” he tells viewers. For his part, Bush pledges to deliver reconciliation and unity to a divided nation in his acceptance speech, saying “our nation must rise above a house divided.” However, Bush immediately indicates that he will seek to reform Social Security and Medicare, two issues guaranteed to cause division among Americans. [US News and World Report, 12/13/2000; Pittsburgh Post-Gazette, 12/17/2000; Leip, 2008]

The US Electoral College meets to certify George W. Bush as the president of the United States. Bush receives 271 votes and Vice President Al Gore receives 266 votes. One Gore elector from the District of Columbia abstains. [Leip, 2008]

George W. Bush taking the oath of office. [Source: White House/ Wally McNamara]George W. Bush is inaugurated as president, replacing President Bill Clinton. Bush is sworn in after a tumultuous, sharply disputed election that ended with a US Supreme Court decision in his favor (see 9:54 p.m. December 12, 2000). He takes the oath of office on the same Bible his father, George H.W. Bush, used in his own 1989 inauguration; the oath is administered by Chief Justice William Rehnquist. In his brief inaugural address, delivered outside the US Capitol, Bush asks Americans to “a commitment to principle with a concern for civility.… Civility is not a tactic or a sentiment. It is the determined choice of trust over cynicism, of community over chaos.” In words apparently chosen to reflect on the criticisms surrounding former President Clinton and his notorious affair with White House intern Monica Lewinsky, Bush says, “I will live and lead by these principles—to advance my convictions with civility, to pursue the public interest with courage, to speak for greater justice and compassion, to call for responsibility, and try to live it as well.” He continues addressing the American people, saying: “I ask you to be citizens. Citizens, not spectators. Citizens, not subjects. Responsible citizens, building communities of service and a nation of character.” At a post-ceremonial luncheon, Bush issues a series of executive orders, some designed to block or roll back several Clinton-era regulations. He also acknowledges that because of the election turmoil, many Americans believe “we can’t get anything done… nothing will happen, except for finger-pointing and name-calling and bitterness.” He then says: “I’m here to tell the country that things will get done. Republicans and Democrats will come together to do what’s right for America.” [New York Times, 1/21/2001]Thousands of Protesters - Thousands of protesters line the streets during Bush’s ceremonial drive to the Capitol, a fact not heavily reported by many press outlets. Salon reports, “Not since Richard Nixon paraded down Pennsylvania Avenue in 1973 has a presidential inauguration drawn so many protesters—and last time, people were out to protest the Vietnam War.” Though Capitol Police refuse to estimate the size of the crowd lining the street, Salon reports that “many thousands of protesters were in evidence.” Liz Butler of the Justice Action Movement, the umbrella organization that helped coordinate the protests, says: “The level of people on the streets shows that people are really upset about lack of democratic process. They took it to the streets. We saw tens of thousands. We saw far more protesting Bush than supporting him.” Some of the people on the streets are Bush supporters, but many more are not, and carry signs such as “Bush Cheated,” “Hail to the Thief,” “Bush—Racism,” “Bushwhacked by the Supremes,” and others. The crowd, though outspoken in its protests and unrestrained in its heckling of Bush and Vice President Dick Cheney, is generally peaceful, and no serious violence is reported, though a few minor altercations do take place, and large contingents of police in riot gear—including personnel from every police department in the District of Columbia as well as the Bureau of Alcohol, Tobacco and Firearms and from departments in Maryland and Virginia—are on hand. At least one protester throws an egg at the limousine transporting Bush, Cheney, and their families to the inaugural ceremonies; perhaps in response to the protests, Bush breaks with tradition laid down by earlier presidents and does not walk any large portion of the parade route. Nine people are arrested for disorderly conduct, most for allegedly throwing bottles and other debris. Bulter says: “Of course, we’re ashamed that Bush has decided to be a ‘uniter’ by uniting people against him. They all chose to come out in the freezing rain—even the weather couldn’t stop these people.” Protester Mary Anne Cummings tells a reporter: “I think it’s important to remind the incoming administration the country does not want a right-wing mandate. They did not vote for a right-wing mandate.” [Salon, 1/20/2001; CNN, 1/20/2001; New York Times, 1/21/2001] Thousands of protesters march in San Francisco, Los Angeles, and other cities as well. [CNN, 1/20/2001]

The US House Committee on Energy and Commerce holds a hearing on the news networks’ election night decision to project George W. Bush the winner of the Florida election, and thereby the winner of the US presidential election (see November 7-8, 2000). One of the matters at hand is Fox News’s choice to have its election night coverage anchored by John Prescott Ellis, President Bush’s cousin and an intensely partisan Bush supporter (see October-November 2000). The chairman of the committee is W.J. “Billy” Tauzin (R-LA). Opening Statements - In his opening statement, Tauzin tells the assemblage that the hearing is to “give us a real sense of what went wrong in terms of the election night coverage of the presidential election of November 2000.” He notes that news coverage issues have been raised in every election since the 1960 Kennedy-Nixon election. Early calls—the practice of news outlets to “call,” or project, winners in states before elections in other states have closed—have long been acknowledged as having a “deletorious” effect on voting, and the use of “exit polling”—polls of voters taken outside polling booths—have proven both “valuable” and “dangerous.” Voter News Service (VNS), the independent consortium that provided polling and other data to the networks and press agencies for their use during their election coverage, uses exit polling to help those news outlets “project” winners in races. Tauzin spends much of his opening statement attacking VNS and the use of exit polling as the “source” of the election night dissension, and says that on the whole, VNS data “produces statistical biases in favor of Democrats in this case today and against Republicans, that the statistical flaws tend to overstate the Democratic vote in the exit poll and understate the Republican vote.” Tauzin says that investigations have “discovered no evidence of intentional bias, no evidence of intentional slanting of this information,” and instead says the entire problem rests with VNS and its use of exit polling data. In their opening statements, many Republicans echo Tauzin’s remarks. Ranking minority member John Dingell (D-MI) calls the election night coverage “a monumental screw-up which I think has embarrassed an awful lot of people.” Dingell repeats Tauzin’s claim that no evidence of intentional bias has been found—calling such allegations “inflammatory”—and says that the focus of future hearings should be on the issue of voter disenfranchisement. Having said all that, he goes on to say that the networks’ decision to call Florida for Bush in the early hours of November 8, 2000 was premature, and lent itself to later allegations that attempts by Democratic challenger Al Gore were baseless and troublesome. Cliff Stearns (R-FL) accuses the networks of trying to influence Florida voters in the Panhandle, a traditionally Republican stronghold, by prematurely calling the state for Gore eight minutes before polls closed in that region. In questioning, Sherrod Brown (D-OH) notes the almost-immediate appearance of the “Sore Loserman” campaign (derived from the names of the Democratic candidates, Gore and Joe Lieberman), which attempted, successfully, to paint attempts by the Gore campaign to force vote recounts as attempts to “steal” the election. Focus on Fox - Henry Waxman (D-CA) is the first to mention Fox News. He reads from a Los Angeles Times editorial, quoting: “Suppose that a first cousin of Al Gore had been running one of the network news teams issuing election night projections. Suppose that having previously recused himself from a columnist job saying his objectivity would suffer from family loyalty, this cousin had chatted with Gore six times on Election Day. Suppose the same cousin had been the first to declare Gore as the winner in Florida on election night, helping coax the rival networks to follow suit, leading George W. Bush to call up Gore in order to concede, thereby helping to create that Gore was the duly elected president of the United States long before all the votes had been counted. Can anybody reasonably doubt that the pundits would be working themselves into a nonstop lather charging the liberal media as accessories to grand larceny? Can we imagine, say, Rupert Murdoch’s Fox news channel right-leaning heads dropping the subject?” Waxman says this was absolutely the case, but with Fox News and John Ellis, not Gore and an imaginary Gore cousin at another network. “[O]f everything that happened on election night this was the most important in impact. It created a presumption that George Bush won the election. It set in motion a chain of events that were devastating to Al Gore’s chances and it immeasurably helped George Bush maintain the idea in people’s minds than he was the man who won the election.” Several other Democrats echo Waxman’s statements. Issues with Florida Election Practices - Peter Deutsch (D-FL) cites issues of rampant voter disenfranchisement of African-Americans, a traditionally Democratic voting bloc, with over 100,000 ballots, mostly from African-American voters, apparently not counted. Deutsch says flatly that “there is no question, it is no longer debatable that if the vote in Florida were counted, Al Gore would be president of the United States.” Bobby Rush (D-IL) cites a large number of incidents where minority group voters were “harassed by police departments” in Florida and in other states besides. In many instances these voters were stopped from voting entirely; in others, their votes were not counted. Other Democrats, such as Eliot Engel (D-NY), echo Deutsch’s and Rush’s concerns; Engel says: “Al Gore was not the only one who lost that night. The American people lost that night, and the news media also lost that night.” Testimony regarding Independent Review of Election Night Coverage - The first witness is Joan Konner, a professor of journalism at Columbia. Konner led a panel commissioned by CNN “to look at what went wrong in [CNN’s] television coverage of the presidential election 2000.” Her panel submitted a report on the election night coverage to CNN, and CNN provided that report to the committee. “[S]omething went terribly wrong,” she says. “CNN executives, correspondents, and producers themselves describe election night coverage as a debacle, a disaster, and a fiasco; and in our report we agree.” She blames the problems with CNN’s coverage on “excessive speed and hypercompetition, combined with overconfidence in experts and a reliance on increasingly dubious polls. We have stated that the desire to be first or at least not to be consistently behind the others led the networks to make calls unwisely based on sketchy and sometimes mistaken information.” The choice to create, fund, and use VNS by all the networks was primarily a cost-cutting decision, she says, but that choice was a mistake: “Relying on a single source eliminates the checks and balances built into a competitive vote-gathering and vote system. It eliminates the possibility of a second source for validating key and possible conflicting information.” Another member of the panel, James Risser of Stanford University, notes that the report’s findings apply equally to other networks along with CNN. Media Panel - After much questioning of the CNN panel, a second panel is sworn in. This panel includes: Fox News chairman Roger Ailes; CBS president Andrew Heyward; CNN chairman Tom Johnson; NBC president Andrew Lack; ABC president David Westin; VNS director Ted Savaglio; VNS editorial director Murray Edelman; and the Associated Press’s president, Louis Boccardi. In an opening statement, Savaglio admits that VNS made “errors” in vote tabulation and predictives based on “flaws” in the statistical analyses. Two major errors were made on election night, Savaglio says, the first leading to the incorrect awarding of Florida to Gore early in the evening, and the second provision of data that indicated Bush had a statistically insurmountable lead in Florida that did not include an accurate tabulation of votes cast in Volusia County as well as errors in other county tabulations and estimates. Boccardi says that the Associated Press used VNS-provided data in the erroneous Gore projection, but “takes full responsibility” for the error. The Associated Press did not join in with the second, Fox News-led projection of Bush’s victory. “[T]he race was too close to call” at that point, he says. “It would be right to surmise that the pressure on AP at that moment [to join the networks in calling the election for Bush] was enormous.” Heyward testifies that CBS, like CNN, hired an independent panel to assess its election coverage, and has a number of improvements to be made for future coverage. “Our method of projecting winners, one that, as you have heard, has produced only six bad calls in over 2,000 races since the 1960s, failed us this time; and as a well-known candidate would say, failed us big time in the very state that held the key to this election,” he says. He also notes that charges by Republican committee members that there is an inherent bias in the statistical models against Republicans “has been rejected by every single outside expert who examined each of the networks, even those experts, and you heard from them today, who are the most highly critical of us.” Lack asks why there was not more media coverage and examination of other voting-related problems, from “ineffective voting machines” and “confusing ballots” to allowing felons to vote. Ailes's Statement - Ailes blames VNS for Fox’s “mistakes” in its reporting, saying: “As everyone knows, Voter News Service, a consortium with a good track record, gave out bad numbers that night. In the closest race in history the wheels apparently came off a rattle trap computer system which we relied on and paid millions for.” He claims, “Through our self-examination and investigation we have determined that there was no intentional political favoritism in play on election night on the part of Fox News.” Ailes does not mention his choice to use Ellis as Fox’s election night anchor in his verbal statement, but in a written statement he submits to the committee, he says that Ellis was not the person who made the final decision to declare Florida for Bush. The news division’s vice president, John Moody, made the final call. As for hiring Ellis, he praises Ellis’s professionalism and experience, and writes: “We at Fox News do not discriminate against people because of their family connections. I am more than happy to give you examples of offspring of famous politicians who are employed at Fox News.” He also says that he was aware that Ellis was speaking to both George W. and Jeb Bush throughout the night, and writes: “Obviously, through his family connections, Mr. Ellis has very good sources. I do not see this as a fault or shortcoming of Mr. Ellis. Quite the contrary, I see this as a good journalist talking to his very high level sources on election night.” Though Ellis has freely admitted to sharing VNS data with both Bushes, Ailes writes, “Our investigation of election night 2000 found not one shred of evidence that Mr. Ellis revealed information to either or both of the Bush brothers which he should not have, or that he acted improperly or broke any rules or policies of either Fox News or VNS.” He concludes: “[I]n my heart I do believe that democracy was harmed by my network and others on November 7, 2000. I do believe that the great profession of journalism took many steps backward.” Questioning the Media Representatives - Almost immediately, Ailes raises the question of skewed exit polling that appears to favor Democrats, though experts have refuted these claims in just-given testimony, and Savaglio has just said that exit polls exhibit no such bias. Ailes tells the panel: “I do know that when Republicans come out of polls and you ask them a question they tend to think it’s none of your business and Democrats want to share their feelings. So you may get some bias there that is inadvertent, just because it’s a cultural thing and unless you send the Republicans to sensitivity training you’re not going to get them to do that.” Tauzin says that a study of VNS results tends to bear out Ailes’s claim. Westin says if there is bias in exit polling, it cuts both ways, an observation with which Tauzin also agrees. Savaglio admits that after midnight, VNS provided substantially inaccurate information to the networks that led them to conclude Bush had a slight but insurmountable lead in Florida. Lack denies the rumor that Jack Welch, the CEO of NBC’s parent company General Electric, made the decision for NBC News to follow Fox’s lead in declaring Bush the presumptive winner in Florida. Waxman accepts Lack’s denial, but notes that he has been told Welch’s command to declare Bush the winner is preserved on videotape, “filmed by NBC’s advertising and promotions department.” Lack says if the tape exists, he will provide it to the committee. Bart Stupak (D-MI) asks the representatives directly if they believe any bias towards one party or another exists in their networks’ coverage, and all answer strongly in the negative. Heyward says that rumors of networks such as his trying to “slant” their coverage to give the idea of an “inevitable” Gore victory are entirely negative, and says: “[C]ertainly we displayed the popular vote graphic 15 times between 7 and 11. President Bush was ahead every single time; on the electoral count, 75 out of
100 times.… The video [shown by the commission at the beginning of the hearing] that gave the impression that the networks were saying Gore’s got it in the bag I believe was misleading, yes.” Westin agrees with Heyward, and says the networks generally gave the impression of “a much more balanced, much closer race throughout the night.” Under questioning by Gene Green (D-TX), Ailes contradicts previously presented evidence and says no one at the election desk, Ellis or anyone else, was in contact with “Austin” (meaning the Bush campaign and George W. Bush personally) at all that night. [House of Representatives, Committee on Energy and Commerce, 2/14/2001]

The cover of Jake Tapper’s book ‘Down and Dirty.’ [Source: OpenLibrary (.org)]Salon reporter Jake Tapper publishes his book on the 2000 presidential elections, titled Down and Dirty: The Plot to Steal the Presidency. In it, Tapper observes that the proof of the resiliency of American democracy comes in the fact that George W. Bush ascended to the presidency in a peaceful manner. The events in Florida that determined the Bush “victory,” from the initial dispute over who won the popular vote (see Early Morning, November 8, 2000 and Mid-Morning, November 8, 2000) to the Supreme Court’s decision to award the presidency to Bush (see 9:54 p.m. December 12, 2000), “brought out the ugliest side of every party in American politics,” Tapper writes. “Democrats were capricious, whiny, wimpy, and astoundingly incompetent. Republicans were cruel, presumptuous, indifferent, and disingenuous. Both were hypocritical—appallingly so at times. Both sides lied. Over and over and over. Far too many members of the media were sloppy, lazy, and out of touch. Hired-gun lawyers pursued their task of victory, not justice. The American electoral system was proven to be full of giant holes.” Democratic candidate Al Gore, Tapper writes, came across as “cold,” “ruthless,” duplicitous, and astonishingly out of touch with the electorate. Republican candidate Bush “was a brilliant schmoozer and deft liar” with the “intellectual inquisitiveness of your average fern,” betraying his fundamental ignorance about American government again and again during the campaign. “Both candidates were wanting,” Tapper writes. Of the actual results, Tapper observes: “We will never know who would have won Florida had all the ballots been hand-counted by their respective canvassing boards. Adding to the confusion were thousands of trashed or miscast ballots—including Palm Beach County’s infamous “butterfly ballot” (see November 9, 2000). We will never know who, therefore, truly was the choice of the most Floridians and who, therefore, really earned the state’s critical electoral votes and therefore the presidency.” [Tapper, 3/2001]

After nearly two years of legal wrangling, the Bush administration releases financial and other records from the November-December 2000 campaign to the Internal Revenue Service. Those records include hundreds of pages of documents regarding the Bush campaign’s efforts to win the Florida recounts (see 9:00 a.m. and after, November 22, 2000). The George W. Bush recount committee spent $13.8 million on its efforts to influence the recount, while long-available documents from the Al Gore recount operation show that Gore spent about a quarter of that amount, $3.2 million. The Bush campaign spent more than that on lawyers—$4.4 million. The Bush records document some 250 paid staffers, payouts of $1.2 million to fly operatives to and from Florida, and about $1 million in hotel bills. Additionally, a fleet of corporate jets was provided to the recount operation, many of them paid for by Enron Corporation and its CEO Kenneth Lay, a prominent Bush backer. Other jets were provided by Halliburton, where Vice President Dick Cheney had served as chairman and CEO. [Consortium News, 8/5/2002]

The state of Florida settles a voter discrimination suit filed by the National Association for the Advancement of Colored People (NAACP) in the wake of allegations of massive and widespread discrimination during the November 2000 elections (see November 7, 2000 and April 24, 2001). The class-action suit charged Database Technologies (DBT), a private firm hired by the Florida government, and Florida Secretary of State Katherine Harris with deliberately attempting to disenfranchise black voters. Florida agrees to provisions that nominally settle the problem, but by 2004 will have implemented virtually none of the corrective procedures mandated by the settlement. Miami-Dade, Broward, Leon, Volusia, and Duval Counties settled earlier rather than face trial. [Center for American Progress, 12/9/2010]

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